In the decision of Noori v. Huges, 2018 BCSC 965 an argument of failure to mitigate is raised that the Plaintiff’s claim should be reduced by 15%.  Although the mitigation argument was not successful, it is interesting to take some notes on this case.

The evidence showed that the Plaintiff failed to attend physiotherapy for a period of time.  There are a number of factors that contributed to this brief interruption which are outlined below, but one of the factors that contributed to the Plaintiff’s failure to mitigate was his financial hardship that he was experiencing.  The court’s position is outlined below on the impact of impecuniosity in relation to the Plaintiff’s failure to mitigate and states that “it is appropriate to consider his financial limitations.”

While the Defence was not successful in seeking a reduction of the Plaintiff’s claim due to failure to mitigate, it must be noted that the cost of future care award for physiotherapy and massage treatment was reduced substantially from $75,000 to $20,000.

Mitigation

It is clear that the onus of proof for the argument of failure to mitigate lies with the Defendant.  The test is well known and stated in Chiu v. Chiu, 2002 BCCA 618:

[57]      The onus is on the defendant to prove that the plaintiff could have avoided all or a portion of his loss. In a personal injury case in which the plaintiff has not pursued a course of medical treatment recommended to him by doctors, the defendant must prove two things:

(1) that the plaintiff acted unreasonably in eschewing the recommended treatment, and

(2) the extent, if any, to which the plaintiff’s damages would have been reduced had he acted reasonably. These principles are found in Janiak v. Ippolito, [1985] 1 S.C.R. 146.

The duty and obligation lies with the Plaintiff to reduce damages being claimed by following the recommendations of his or her physician.  However, there are factors that must be considered if there is an interruption in treatment.  Outlined were the considerations raised in this case:

• Consistently attended physiotherapy for over 2 ½ years;
• Physician confirmed that the Plaintiff was generally compliant with her recommendations;
• The Plaintiff was busy at work which was partially to blame for the interruption in treatment;
• Financial difficulties was also partially to blame for the interruption in treatment;

Financial limitations are a factor that the court will consider to rebut an argument of failure to mitigate.  This factor was raised in two further decisions which were referenced in this matter and I will provide the quotations from the following referenced decisions as they are helpful.

Spurgeon v. Smith, 2009 BCSC 1526 at paras 63-70;

Impecuniosity

[63]           Returning to the issue of whether the plaintiff could have reasonably been expected to attend chiropractic sessions given his impecunious situation, the defence makes three arguments: first, that the plaintiff was not in fact impecunious; second, that the plaintiff made a conscious decision not to obtain medical treatment for other reasons besides impecuniosity; and third, that in any case impecuniosity is no defence to a failure to mitigate.

[64]           I accept that the plaintiff was in a financial situation wherein he could not reasonably afford chiropractic treatment on his own. Secondly, since the plaintiff testified that chiropractic treatment helped him, while other medical treatment did not, I accept that the predominant reason for the plaintiff’s failure to attend a chiropractor was his impecuniosity.

[65]           Thus the question remains whether impecuniosity can be a defence to failure to mitigate in this context. The defendant argues that it cannot, citing a classic British case, Owners of Dredger “Leisbosch” v. Owners of Steamship “Edison”, [1933] A.C. 449 (H.L.) at 460. In that case, the appellants’ vessel was negligently dragged out to sea and sunk by the respondents’ vessel. The appellants needed to find a replacement vessel, but did not have the financial resources to purchase a new one, so they rented one, which was expensive. The House of Lords dismissed their claim for compensation for the rental costs, reasoning that the company’s impecuniosity was caused by forces independent to the tort of the respondent, and the consequences of this impecuniosity were thus too remote.

[66]           The factual context in which the Leisbosch case was decided is distinguish- able and to that extent it is not of much assistance to the defendants. In Leisbosch, the plaintiff and defendant were sophisticated commercial ship owners operating in a business environment. The instant case is a personal injury case involving two ordinary human beings, and in actuality really amounts to a dispute between one unsophisticated party and one large public insurance company. There is an inequality of bargaining position that does not arise in Leisbosch.Additionally, the consequences of impecuniosity of the plaintiff in a motor vehicle personal injury case do not have the same character of remoteness as they did in Leisbosch.

[67]           Further, the current trend in British Columbia jurisprudence bears this result out. In Antoniali, supra, Preston J. noted in the discussion of the reasonableness of the plaintiff’s actions in mitigating at para. 43 that “finances in the Antoniali household were tight. Ms. Antoniali discussed engaging a personal trainer in 2004 with her husband but they did not pursue it because of other financial demands.”

[68]           In Pelkinen, supra, Bruce J. wrote at para. 86:

Although a failure to take advantage of treatment options, particularly when they are most effective shortly after the symptoms surface, can lead to a conclusion that the patient has failed to mitigate, all of the relevant circumstances must be considered. In this case, Ms. Pelkinen could not afford the cost of a psychologist and there is no evidence ICBC had agreed to compensate her for the multiple visits required.

[69]           Finally, in Quinlan v. Quaiscer, 2008 BCSC 1288 (CanLII), impecuniosity was also accepted by Cole J. as a counter-defence to the defence of failure to mitigate in the context of motor vehicle personal injury, at para. 52.

[70]           Having considered the above cases, I find that the plaintiff’s failure to attend chiropractic treatment due to his impecuniosity should not be factored into the reduction of his award due to failure to mitigate.

Olynyk v. Turner, 2012 BCSC 1138 at paras. 56-57.

The next issue is whether it was reasonable for him not to. That turns on his evidence that he could not afford it. I accept that impecuniosity can be a legally sufficient reason for failing to pursue recommended treatment (see generally Spurgeon v. Smith, 2009 BCSC 1526 (CanLII), at paras. 64-70). The defendant has the onus of proving that it was unreasonable for the plaintiff not to pursue treatment. Although impecuniosity is capable of justifying a failure to take treatment, it is not reasonable for a plaintiff who cannot afford treatment to take no steps to try to obtain funding. If a request is made to the defendant to fund a rehabilitation program and the request is denied or ignored, then the onus will generally be discharged. On the other hand, if the defendant is otherwise unaware that a lack of funds is precluding reasonable treatment, it is reasonable to expect the plaintiff to make that circumstance known to the defendant. For a plaintiff to simply do nothing and then assert impecuniosity is not reasonable in my view.

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